Dallas Emergency Motion for Protective Order

8/20/2019 Dallas Emergency Motion for Protective Order

1/21

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXASDALLAS DIVISION

CITY OF DALLAS, §

Plaintiff, §§

v. § Civil Action No. 3:15-cv-02069-K§

DELTA AIR LINES, INC., et al., §

Defendants. §

CITY OF DALLAS’ EMERGENCY MOTION FOR PROTECTIVE ORDER

REGARDING 30(b)(6) DEPOSITION TOPICS NOS. 1 AND 18

OFFICE OF THE CITY ATTORNEY

CITY OF DALLAS, TEXAS

WARREN M.S. ERNST

CITY ATTORNEY

By s/ Peter B. Haskel

CHARLES ESTEE

Assistant City AttorneyState Bar of Texas No. 06673600

[email protected] PETER B. HASKEL

Executive Assistant City Attorney

[email protected] State Bar of Texas No. 09198900

STACY JORDAN RODRIGUEZ

Assistant City [email protected]

State Bar of Texas No. 11016750

7BN Dallas City Hall1500 Marilla Street

Dallas, Texas 75201

Telephone – 214/670-3519

Telecopier – 214/670-0622

ATTORNEYS FOR PLAINTIFF, CITY OF

DALLAS

Case 3:15-cv-02069-K Document 154 Filed 09/11/15 Page 1 of 21 PageID 4211


2/21

TABLE OF CONTENTS

I. INTRODUCTION................................................................................................... 1

II.

FACTS ..................................................................................................................... 3

III. ARGUMENT AND AUTHORITIES .................................................................... 9

A. Scope of Discovery Under Rule 26 ........................................................................ 9

B. The Court should quash topics 1 and 18 because they are improper. ............. 10

1. Topic 1 is beyond the permissible scope of discovery because it is not

reasonably calculated to lead to the discovery of admissible evidence. ..................... 10

2.

Delta has impeded the City’s ability to prepare a witness to respond to

questions about the topic 1 (the Five Party Agreement negotiations)........................ 11

3. Testimony regarding topic 18 is improper discovery on discovery, is overly

broad, unduly burdensome, and harassing to the City, and the information

requested has already been provided. ........................................................................... 12

a. Topic 18 seeks irrelevant “discovery on discovery.” .................................. 12

b. The burden on the City to prepare a witness on topic 18 far outweighs any

benefit the testimony may have to Delta. ............................................................... 14

c. Topic 18 is moot because the City has already provided Delta with

detailed information regarding its document collection and production. .......... 15

IV. CONCLUSION AND PRAYER .......................................................................... 15



3/21

TABLE OF AUTHORITIES

Cases

Barker v. Roelke, 105 S.W.3d 75 (Tex.App.--Eastland 2003, pet. denied) .................................. 13

Burka v. U.S. Dept. of Health & Human Servs., 87 F.3d 508 (D.C. Cir. 1996) ........................... 12

Fish v. Tandy Corp., 948 S.W.2d 886 (Tex.App.--Fort Worth 1997, pet. denied) ....................... 13

Freedman v. Weatherford Intl’l Ltd., 2014 WL 4547039 (S.D.N.Y. Sept. 12, 2014) .................. 16

In re: Jemsek Clinic, P.A., 2013 WL 3994666, 2013 Bankr. LEXIS 3121 (Bankr. W.D.N.C.

2013) ......................................................................................................................................... 16

Love Terminal Partners, L.P. v. City of Dallas, 527 F. Supp. 2d 538 (N.D. Tex. 2007) ............. 13

Martin v. Allstate Ins. Co., 292 F.R.D. 361 (N.D. Tex. 2013) ..................................................... 16

Rogers v. Frito–Lay, Inc., 611 F.2d 1074 (5th Cir.), cert. denied, 449 U.S. 889 (1980) ............. 14

Sun Oil Co. v. Madeley, 626 S.W.2d 726 (Tex. 1981) ................................................................. 13

Theriot v. Parish of Jefferson, 185 F.3d 477 (5th Cir. 1999) ....................................................... 18

Yerger v. Liberty Mut. Group, Inc., 2012 WL 4424017 (E.D.N.C. Sept. 24, 2102) .................... 12

Statutes

Wright Amendment Reform Act of 2006, Pub. L. 109-352, 120 Stat. 2011 (2006) ...................... 8

Rules

Fed. R. Civ. P. 26 (b)(1).................................................................................................... 12, 13, 16

Fed. R. Civ. P. 26(c)(1)(D) ........................................................................................................... 12



4/21

City’s Emergency Motion for Protective Order Page 1 of 21

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXASDALLAS DIVISION

CITY OF DALLAS, §Plaintiff, §

§

v. § Civil Action No. 3:15-cv-02069-K§

DELTA AIR LINES, INC., et al., §

Defendants. §

CITY OF DALLAS’ EMERGENCY MOTION FOR PROTECTIVE ORDER

REGARDING 30(b)(6) DEPOSITION TOPICS NOS. 1 AND 18

TO THE HONORABLE JUDGE OF SAID COURT:

Plaintiff City of Dallas (the “City”) hereby submits its Emergency Motion for Protective

Order Regarding Topic Nos. 1 and 18 of Defendant Delta Airlines, Inc.’s (“Delta”) Second

Amended Notice of Deposition of the City of Dallas Pursuant to Fed. R. Civ. P. 30(b)(6)

(“Delta’s Notice”).

I. INTRODUCTION

In this lawsuit, in which the critical facts are not in dispute, and resolution of the case

turns on legal issues rather than factual ones, the parties have already expended vast resources

during expedited discovery, and will undoubtedly incur even more expenses while discovery

continues. But rather than using the parties’ and the Court’s resources to focus on the merits of

the case, Delta seeks testimony from a City representative regarding two non-merits based

topics: the negotiations and circumstances leading to the Five Party Agreement, and the City’s

document collection efforts and document production in this litigation. These topics are outside

the scope of permissible discovery for multiple reasons and are unrelated to the merits of the

parties’ claims, counterclaims, and defenses.



5/21


Therefore, the City moves for a protective order on two of the 18 topics in Delta’s

Notice:

Topic 1, which seeks testimony regarding “[a]ll facts and information related to or

concerning the process by which Southwest was allocated 16 of 20 gates at the

renovated Love Field terminal;” and

Topic 18, which seeks testimony regarding “[d]ocument collection efforts and

document collection in connection with the Lawsuit.”

Both of these topics are improper. With respect to topic 1, the process by which

Southwest was allocated gates at Love Field, the testimony sought is not reasonably calculated to

lead to the discovery of admissible evidence and thus is beyond the proper scope of discovery. It

is undisputed that Southwest’s gate allocation was negotiated as part of the Five Party

Agreement and was later incorporated into the Wright Amendment Reform Act (“WARA”).

Neither the Five Party Agreement nor WARA are ambiguous, and evidence regarding the

parties’ intent and negotiations is irrelevant and inadmissible. Further, it would be unfair,

harassing, oppressive, and unduly burdensome for Delta to inquire into such matters when one of

its lawyers previously represented the City in connection with these very issues and was the

subject of a motion for disqualification by the City. And Delta has impeded the City’s

preparation for the 30(b)(6) deposition by putting the City in the untenable position of needing to

rely on the records of its former attorney in order to prepare, records which were only produced

to the City (after months of asking for them) two business days before the scheduled deposition.

Topic 18 is similarly objectionable because the topic is overly broad, unduly burdensome,

and seeks information that is irrelevant and not reasonably calculated to lead to the discovery of

admissible evidence. This topic does not relate, in any way, to a claim, counterclaim, or defense



6/21


of any party, and as such does not seek discovery on a relevant subject matter as required by Fed.

R. Civ. P. 26. Delta has not alleged, and has no evidence to support, a claim of either spoliation

of evidence by the City or of inadequate document production. Furthermore, topic 18 is also

moot because the City has already provided information about its document collection and

production to Delta, including its search terms, custodian list, date range, and items searched.

Finally, topic 18 was a last minute addition to the deposition notice on Thursday afternoon,

September 10, when the deposition is scheduled for Monday morning, September 14, leaving the

City inadequate time to prepare a witness for such testimony.

II.

FACTS

1. On September 3, 2015, counsel for the City, Delta, and Southwest agreed on a

schedule for the depositions of corporate representatives. The City’s representative was

scheduled to be deposed on Monday, September 14, 2015. On September 4, 2015 Delta served

the City with a notice of deposition under Fed. R. Civ. P. 30(b)(6) which included as designated

topic 1 “[a]ll facts and information related to or concerning the process by which Southwest was

allocated 16 of 20 gates at the renovated Love Field terminal.” App. at 0001-11.1 The notice

has since been amended twice, but Delta has refused the City’s requests to abandon topic 1.

Delta served its second amended notice for the 30(b)(6) deposition on the afternoon of

September 10, 2015. App. at 0012-22. As made clear by the facts described below, that gate

allocation was negotiated as part of the Five Party Agreement in 2006.

2. The Five Party Agreement appears in several places in the record, including as a

certified official record under seal of the City to which no party has objected contained in Exhibit

4 of the Appendix to the City’s Original Complaint. (ECF 1 at 60 et seq.).

1 Co-Defendant Southwest Airlines, Co. (“Southwest”) served the City with a notice that included a related

Rule 30(b)(6) topic but through conference Southwest has voluntarily withdrawn that topic.



7/21


3. Delta admitted the following allegations in its Answer (ECF 66) to the City’s

Original Complaint (ECF 1):

32. [1] On or about July 11, 2006, the City of Dallas, the City of Fort

Worth, the Dallas-Ft. Worth International Airport Board, Southwest, and

American entered into an agreement (referred to as the “Five Party Agreement”). .. . [4] Southwest agreed not to operate from DFW Airport unless it surrendered a

Love Field gate, up to eight gates, for each DFW gate that it acquired. [5] Flight

operations were limited to 6:00 a.m. to 11:00 p.m. and no international flightswould originate from Love Field. [6] The number of gates at Love Field would be

reduced from the then existing 32 gates to 20. [7] The agreement also stated, “To

the extent a new entrant carrier seeks to enter Love Field, [the City] will seek

voluntary accommodation from existing carriers” but if an agreement was notreached then the City agreed “to require the sharing of any preferential lease

gates, pursuant to the terms of existing lease agreements.” (Five Party Agreement,

para. 1.b.)

(ECF 66 at 16-17)2 Delta’s answer denied the allegations in the same paragraph of the

Complaint that:

[2] The underlying principle of the Five Party Agreement was to resolve the

manner in which service could be provided at Love Field in the future. [3] TheFive Party Agreement provided that Southwest would obtain preferential use of

16 gates, American would obtain preferential use of two gates, and ExpressJet

Airlines, Inc. (“ExpressJet”) would obtain preferential use of two gates.

(ECF 66 at 16.) However, these allegations cannot be in genuine dispute given the terms of the

Five Party Agreement (ECF 1 at 60, et seq.), particularly the language in paragraph 3.b of the

agreement (ECF 1 at 73), and in footnote 2 of the Joint Statement attached to the City of Dallas’

version of the Joint Resolution authorizing the Five Party Agreement (ECF 1 at 67), respecting

preferential gate use allocation and accommodation, which was incorporated by reference into

the Five Party Agreement. (ECF 1 at 72 (final “Whereas” clause.)) The preferential gate and

accommodation provisions of the Five Party Agreement, along with most of the agreement, were

2 Love Field refers to Dallas Love Field, a City-owned airport in Dallas, Texas.



8/21


later incorporated into the Wright Amendment Reform Act of 2006, Pub. L. 109-352, 120 Stat.

2011 (2006) (“WARA”) (ECF 1 at 56-59) and into the essentially identical provisions of the

Love Field gate leases of both Southwest (ECF 52-5) and United Airlines, Inc. (“United”). (ECF

1 at 18)

4. The Five Party Agreement contains a clear integration clause:

17. ENTIRE AGREEMENT. This Contract embodies the complete agreement of

the Parties hereto relating to the matters in this Contract; and except as otherwise

provided herein, cannot be modified without written agreement of all the Parties,

to be attached to and made a part of this Contract.

(ECF 1 at 80 (¶ 17))

5. The Five Party Agreement required the parties to “agree to seek the enactment of

legislation to allow for the full implementation of this Contract … amending … the ‘Wright

Amendment’ and ultimately effect its repeal . . . .” (ECF 1 at 72) The Five Party Agreement

further provided that it would become “null and void” if Congress did not enact legislation by

December 31, 2006. (ECF 1 at 77) WARA essentially incorporates the gate allocations in the

Five Party Agreement as federal law. WARA § 5(a). (ECF 1 at 57)3

6. As detailed at length in the City’s Emergency Motion for Disqualification (ECF

18) of attorney Robert C. Walters and related Appendix (ECF 19), Walters, a Delta attorney, was

extensively involved in representing the City in litigation following the Five Party Agreement’s

3 Section 5(a) of WARA provides in full: (a) IN GENERAL.-The city of Dallas, Texas, shall reduce as soon as practicable, the number of gates available

for passenger air service at Love Field to no more than 20 gates. Thereafter, the number of gates available for

such service shall not exceed a maximum of 20 gates. The city of Dallas, pursuant to its authority to operate

and regulate the airport as granted under chapter 22 of the Texas Transportation Code and this Act, shalldetermine the allocation of leased gates and manage Love Field in accordance with contractual rights and

obligations existing as of the effective date of this Act for certificated air carriers providing scheduled

passenger service at Love Field on July 11, 2006. To accommodate new entrant air carriers, the city of Dallasshall honor the scarce resource provision of the existing Love Field leases.



9/21


execution, including defending the City from attacks on gate allocations based in substantial part

on the gate allocations arising under the agreement and later incorporated into WARA.

7. The disqualification motion and appendix further establish that Walters also led

the City’s efforts for congressional adoption of WARA, including the gate allocation provisions.

As a result of that disqualification motion, Walters withdrew from this case as litigation counsel,

but his firm is still lead counsel for Delta. (ECF 45, 46, 47, 48) Walters himself continues to act

on behalf of Delta, ostensibly for the limited purpose of furthering settlement with Southwest

(ECF 121). During his representation of the City, Walters filed briefs supporting motions to

dismiss claims against the City in a civil action in this Court, Love Terminal Partners, L.P. et al. v.

City of Dallas et al., Cause No. 3:06-cv-01279 (N.D. Tex.) (“ Love Terminal Partners”),4 that

asserted, among other arguments that are inconsistent with Delta’s current position and hostile to

the City’s:

a. “As Congress recognized, its enactment of [WARA] will greatly benefit not only

the citizens in the Dallas-Fort Worth area, but also millions of consumers throughout

the nation who use Love Field and the Dallas-Fort Worth International Airport. The

legislation has and will continue to promote airline competition in North Texas, thus

enabling consumers to save hundreds of millions of dollars in air fares each year.”

Love Terminal Partners (ECF 33-2 at 8)

b. “Significantly, Section 5(a) [of WARA] mandates Dallas to reduce the number of

gates at Love Field from 32 to 20, and requires Dallas to determine the allocation of

leased gates and manage Love Field in accordance with [the Five Party Agreement]

entered into by the parties.” Id . at 12.

4 The City asks the Court to judicially notice the matters of record in the Court’s Love Terminal

Partners case.



10/21


c. “[WARA] further provides that the FAA may not take any actions inconsistent

with [the Five Party Agreement] or challenge the legality of its provisions.” Id . at 13-

14.

d. “[WARA] also compels the City of Dallas to (a) reduce the number of gates at

Love Field to 20; (b) allocate those gates and manage Love Field in accordance with

[the Five Party Agreement]; and (c) enforce provisions of the existing Love Field

leases, including leases with American and Southwest.” Love Terminal Partners (ECF

58 at 13)

8.

In addition, Walters pointed to the deletion of an antitrust savings clause

originally included in the bill that would eventually become WARA as a sign of “clear

Congressional intent to confer immunity on the defendants for performing [the Five Party

Agreement] under Congressional mandate.” Love Terminal Partners (ECF 58 at 29-30)

9. The City has, for months, sought from its former attorney, and from the firm at

which he was partner when he represented the City, the files related to that representation and

only received them on Wednesday, September 9, 2015.5 This delay prejudiced the City’s

attempt to prepare witnesses to testify on Delta’s gate allocation topic if preparation is required.

10. There is no one still serving as an officer or employee of the City who was

directly involved in the negotiations over Southwest’s Love Field gate allocations. As the City

advised Delta, people who were involved and would have personal knowledge include former

Mayor Laura Miller and former City Attorney Thomas P. Perkins, Jr. Ironically, attorney

5 The firm on September 8, 2015, arranged to allow the City to retrieve relevant files. The City received 9

boxes of documents on the afternoon of September 9, 2015 and is reviewing the contents. Attorney Walters has just

advised the City that he has no relevant files.



11/21


Walters is one of the most knowledgeable people about gate allocation issues who represented

the City.

11. Any attempt to recruit former officials to testify as City representatives, or even to

debrief the City’s representative witness if they were willing to do either, would entail days of

document review and other preparation for which they would not be compensated. Under the

circumstances, this would amount to more than the “reasonable inquiry” required by Rule

30(b)(6).

12. The City’s representative witness for the noticed 30(b)(6) deposition is Director

of Aviation Mark Duebner. His preparation time was limited, however, by the insistence of the

U.S. Department of Transportation that a senior City representative with authority over the

airport attend a meeting with senior federal agency personnel, Southwest, and Delta on Tuesday,

September 8, 2015 (the day after the Labor Day weekend) in the District of Columbia, without

lawyers and in person (not by telephone). Duebner is the only available City official with the

required credentials (although no City official has agreement authority), was invited by name,

and therefore was reluctantly made available for the meeting by the City. Federal agency

officials represented to the City that the talks would relate to settlement of both the instant civil

action and to a related FAA investigation.

13. The City has produced documents to Delta and Southwest in this litigation as

follows: (1) on August 19, 2015, it produced 4,303 documents; (2) on August 25, 2015, it

produced 18,632 documents; and (3) on September 11, 2015, it produced 391 documents.

14. On August 19, 2015, after reviewing the City’s objections and responses to its

request for production, Delta counsel sent a meet and confer letter to the City’s counsel listing

several issues for discussion. App. at 0023-27. In response, City’s counsel held two telephone



12/21


conversations with Delta’s counsel and sent a letter on August 31, 2015. App. at 0028-33. The

City voluntarily attached as Exhibit 1 to its response letter a list describing the search terms, date

range, custodians, and items searched in connection with its document productions. Then, on

September 3, 2015, City’s counsel and Delta’s counsel exchanged emails with still more

information regarding the City’s document production. App. at 0034-35. The City has been

transparent with respect to its document production in this case and has answered every question

raised by Delta’s counsel.

III. ARGUMENT AND AUTHORITIES

A.

Scope of Discovery Under Rule 26

The scope of discovery extends to “any matter, not privileged, that is relevant to the

claim or defense of any party . . .” Fed. R. Civ. P. 26 (b)(1) (emphasis added). Such a limitation

is axiomatic – to permit discovery on issues unrelated to the claims or defenses presented in a

case would be to imprudently delay adjudication on the merits and squander the parties’ and the

courts’ time and resources. See generally Yerger v. Liberty Mut. Group, Inc., 2012 WL 4424017

(E.D.N.C. Sept. 24, 2102) (finding that discovery into matters other than the facts relating to the

claims and defenses of the case should not be permitted). And Rule 26 expressly allows a court,

upon showing of good cause, to issue an order “forbidding inquiry into certain matters, or

limiting the scope of disclosure or discovery to certain matters.” Fed. R. Civ. P. 26(c)(1)(D).

That is, after consideration of the needs of the parties, the court may, in its discretion, deny

discovery completely, limit the conditions, time, place, or topics of discovery, or limit the

manner in which information is to be revealed. Burka v. U.S. Dept. of Health & Human Servs.,

87 F.3d 508, 517-18 (D.C. Cir. 1996). This includes issuing protective orders regarding

depositions.



13/21


B. The Court should quash topics 1 and 18 because they are improper.

1. Topic 1 is beyond the permissible scope of discovery because it is not

reasonably calculated to lead to the discovery of admissible evidence.

Pretrial discovery is broad but remains limited to seeking information that is “reasonably

calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). Delta’s

topic 1 seeks no such information. The Five Party Agreement had an integration clause, making

parol evidence of intent and negotiations leading to the agreement irrelevant and inadmissible

absent any showing of fraud or ambiguity. See Fish v. Tandy Corp., 948 S.W.2d 886, 898

(Tex.App.--Fort Worth 1997, pet. denied). The Texas parol evidence rule circumscribes the use

of extrinsic evidence when interpreting an integrated document. Sun Oil Co. v. Madeley, 626

S.W.2d 726, 731 (Tex. 1981). There is nothing ambiguous about the gate allocation provisions

of the Five Party Agreement or WARA. Nor is there the slightest indication of fraud or any

other pretext for invading the parol evidence rule. When, as here, a contract contains a merger or

integration clause, the contract's execution presumes that all prior negotiations and agreements

relating to the transaction have been merged into the contract, and it will be enforced as written

and cannot be added to, varied, or contradicted by parol evidence. Barker v. Roelke, 105 S.W.3d

75, 83 (Tex.App.--Eastland 2003, pet. denied).

WARA incorporated the gate allocation provisions of the Five Party Agreement. There is

nothing ambiguous about WARA’s language regarding gate allocations. Love Terminal

Partners, L.P. v. City of Dallas, 527 F. Supp. 2d 538, 558-59 (N.D. Tex. 2007). WARA’s

meaning, therefore, must be ascertained from the plain language of the statute. Id . If there were

any textual ambiguities, which there are not, id., only then could the parties refer to legislative

history in congressional records. But even then, post hoc recollections about negotiations and

intent would be incompetent, inadmissible and irrelevant. “The retroactive wisdom provided by



14/21


the subsequent speech of a member of Congress stating that yesterday we meant something that

we did not say is an ephemeral guide to history.” Rogers v. Frito–Lay, Inc., 611 F.2d 1074, 1080

(5th Cir.), cert. denied, 449 U.S. 889 (1980). Thus, no testimony from a City witness on this

issue could lead to the discovery of admissible evidence.

2. Delta has impeded the City’s ability to prepare a witness to respond to

questions about the topic 1 (the Five Party Agreement negotiations).

There is nobody left with the City who had an active role in negotiating the Five Party

Agreement, so any Rule 30(b)(6) deposition testimony would be based on documents that the

City has already produced to the other parties and on the witness’ discussions with former City

officials, employees, and lawyers, each of whom Southwest and Delta have the same opportunity

to contact as does the City, subject to the City’s assertions of privilege. The City will direct its

representative witness not to answer questions on this or other topics that would disclose

attorney-client privileged communications. It also will direct any former attorneys not to

disclose privileged or, except under subpoena, confidential information of the City.

Attorney Robert Walters, now of Gibson Dunn, represented the City while at his former

law firm regarding the Five Party Agreement’s enforceability against anti-trust and other

challenges as the City’s lead outside litigation counsel. He and his firm now represent Delta in

this litigation (though he has withdrawn from the case, he still represents Delta regarding certain

issues including possible settlement with Southwest). Walters should not have disclosed any

confidential information in connection with that representation to Delta or to any other Delta

lawyer, or provided any advice contrary to the City’s interests about that agreement. The

undesirability of depending on our former lead lawyer – who now represents an adverse party

(based on Delta’s pending counterclaims (ECF 144)) – on the same topic as the former

representation, makes it highly unfair and oppressive for Delta, in particular, to inquire into the



15/21


agreement. Delta’s new counterclaims, based in part on its gloss of the Five Party Agreement,

also call into question whether Gibson Dunn can continue to represent Delta at all in the

litigation.

Under the circumstances, it would be oppressive, harassing, unfair, and unduly

burdensome to require the City’s representative witness to testify about Southwest’s gate

allocation in the Five Party Agreement in response to questions from either Southwest or Delta.

3. Testimony regarding topic 18 is improper discovery on discovery, is overly

broad, unduly burdensome, and harassing to the City, and the information

requested has already been provided.

Topic 18 in Delta’s Notice seeks testimony from the City regarding “[d]ocument

collection efforts and document production in connection with the Lawsuit.” App. at 0022. The

City objects to producing a witness to testify regarding topic 18 and a protective order is

warranted for several reasons. First, topic 18 seeks quintessential “discovery on discovery” that

is unrelated to a claim, counterclaim, or defense of any party and is therefore outside the proper

scope of discovery. Second, it would be harassing and unduly burdensome for the City to have to

prepare a representative witness to testify regarding its document collection and production

efforts when there is no allegation of spoliation of evidence or inadequate document production

and when the topic was added one business day before the scheduled deposition. Third, topic 18

is moot because the City has already provided information regarding its document collection and

production to Delta.

a. Topic 18 seeks irrelevant “discovery on discovery.”

A protective order is justified because topic 18 is an attempt to engage in a sideshow

regarding the City’s conduct in discovery, which is completely unrelated to the merits of the



16/21


parties’ claims and defenses. Such non-merits based discovery is deemed “discovery on

discovery,” and, as one court said, should be “closely scrutinized in light of the danger of

extending the already costly and time-consuming discovery process.” Freedman v. Weatherford

Intl’l Ltd., 2014 WL 4547039, at *2 (S.D.N.Y. Sept. 12, 2014); see also Martin v. Allstate Ins.

Co., 292 F.R.D. 361, 364 (N.D. Tex. 2013) (holding that “non-merits” based 30(b)(6) deposition

topics on defendant’s document retention policies and defendant’s efforts in responding to

plaintiff’s discovery were overbroad and irrelevant and denying motion to compel a deposition

on those topics); In re: Jemsek Clinic, P.A., 2013 WL 3994666, 2013 Bankr. LEXIS 3121 at *22

(Bankr. W.D.N.C. 2013) (noting that “[v]arious courts have held that such non-merits based

discovery is improper when the requesting party has not made a threshold showing that

spoliation has already occurred” and granting motion for protective order disallowing 30(b)(6)

topics relating to document collection and production efforts except as to narrower topics to

which the producing party did not object). Under Rule 26(b)(1), discovery is appropriate on “any

matter, not privileged, that is relevant to the claim or defense of any party.” Fed. R. Civ. P.

26(b)(1). Topic 18 improperly seeks “discovery on discovery” by implicating the City’s

document search, collection, and production process – none of which relate to a claim or defense

in this matter. That is, topic 18 seeks testimony about how the City has conducted this litigation,

as opposed to the substantive issues involved in determining gate accommodations at Love Field.

On these grounds alone, a protective order is warranted.

The City understands its discovery obligations and has undertaken proper and appropriate

efforts in searching for and producing relevant and responsive information. The City has

produced over 109,483 pages of materials to date. In addition, as the City has maintained,



17/21


resolution of this case turns on legal issues, not discoverable fact issues, and before the litigation

began all of the parties already had the relevant documents.

The City has also provided to Delta specific information, in response to Delta’s inquiries,

about its document collection and production process, including its list of search terms,

document custodians, date range, and items searched. Delta has not made, and there is no basis to

support, an assertion that the City has not conducted a thorough search for responsive material. It

is inappropriate to require the City to provide a separate deponent on that topic. Requiring a

representative witness to prepare for and testify on topic 18 amounts to a needless and

inappropriate exercise into non-merits based discovery that is outside the bounds of Rule 26,

especially in light of the compressed schedule of this case.

b. The burden on the City to prepare a witness on topic 18 far outweighs

any benefit the testimony may have to Delta.

Not only does topic 18 seek non-merits based “discovery on discovery,” practically

speaking, it would be virtually impossible and therefore unduly burdensome for the City to

produce a single representative witness with knowledge concerning the entire spectrum of its

document collection and production process in connection with this litigation. The process of

identifying, collecting, and producing responsive documents includes a combination of people –

the City’s attorneys, staff, the document custodians themselves, and discovery vendors, among

others. There is not one person that could adequately serve as a corporate representative, nor is it

feasible to educate a representative to testify regarding the entire search process. Plus, Delta

added topic 18 to its deposition notice late in the day on Thursday, September 10, just one

business day before the scheduled deposition of the City representative on Monday, September

14. The City could not comply with the notice by designating and preparing a witness in that



18/21


time frame even if it did not object to the topic. Mark Duebner, the City’s designee on other

topics, would not be able to testify regarding topic 18. If the City were ordered to produce a

deponent to testify regarding its document collection and production process, the deponent may

have to be one of the City’s attorneys or paralegals. Courts generally disfavor ordering the

deposition of a party’s attorney. See Theriot v. Parish of Jefferson, 185 F.3d 477, 491 (5th Cir.

1999). As such, the burden on the City to comply with topic 18 far outweighs any potential

benefit to Delta, particularly when the City has already shared detailed information about its

document collection and production, as discussed below. Good cause exists for the issuance of a

protective order.

c. Topic 18 is moot because the City has already provided Delta with

detailed information regarding its document collection and production.

Finally, the Court should disallow topic 18 because the information sought regarding the

City’s document collection and production in this lawsuit has already been provided to Delta.

City’s counsel and Delta’s counsel have exchanged at least two telephone calls, letters (App. at

0028-33), and emails (App. at 0034-35) in which the City has voluntarily shared the specifics of

its document collection and production. Moreover, ESI produced by the City in this case contains

metadata identifying document custodians and authors, among other things. In this context,

Delta’s request for a 30(b)(6) deponent to testify regarding the City’s document collection and

production is moot, redundant of information already provided, and unjustified.

IV.

CONCLUSION AND PRAYER

For the foregoing reasons, the City requests that the Court grant its motion and enter a

protective order disallowing topics 1 and 18 in Delta’s 30(b)(6) deposition notice to the City and



19/21


topic 20 in Southwest’s 30(b)(6) notice to the City. The City also requests any further relief to

which it may be entitled.

Respectfully submitted,

OFFICE OF THE CITY ATTORNEY

CITY OF DALLAS, TEXAS

WARREN M.S. ERNST

CITY ATTORNEY

By s/ Peter B. Haskel

CHARLES ESTEE

Assistant City Attorney


[email protected] PETER B. HASKEL

Executive Assistant City Attorney [email protected]


STACY JORDAN RODRIGUEZAssistant City Attorney

[email protected]

State Bar of Texas No. 110167507BN Dallas City Hall

1500 Marilla StreetDallas, Texas 75201

Telephone – 214/670-3519

Telecopier – 214/670-0622

ATTORNEYS FOR PLAINTIFF, CITY OF

DALLAS

CERTIFICATE OF CONFERENCE

I certify that on September 4, 2015, I conferred respecting the relief requested by

telephone with Kent Krabill, attorney of record for Southwest Airlines, Co., who advised that

his client would not ask the City’s representative witnesses about the Five Party Agreement at

the scheduled 30(b)(6) deposition and consented to the relief requested above, but represented

that if Delta were permitted to inquire into the Five Party Agreement, that Southwest would



20/21


reserve the right to pose related questions, and on September 6, 2015, I conferred via telephone

with Karl Nelson, attorney of record for Delta Air Lines, Inc., respecting the relief requested in

the above motion, who advised that Delta opposed the relief requested.

A full agreement could not be reached. Therefore, the matter is submitted to the Court

for determination.

s/ Peter B. Haskel

PETER B. HASKEL

I certify that on September 11, 2015 I conferred by telephone with Karl Nelson, attorney

for Delta, about the relief requested in this motion regarding topic 18 in Delta’s 30(b)(6)

deposition notice. Mr. Nelson advised that, to the extent that the City’s objection to topic 18 was

based strictly on the timing of the deposition, Delta would not oppose the relief requested and

would work with the City to schedule a different time for a witness to be deposed; but to the

extent that the City’s objection to topic 18 was based on other issues, Delta opposed the relief

requested in the motion. Because the City’s objection to topic 18 includes more than just the

timing of the notice, full agreement could not be reached and the motion is presented to the Court

for determination.

s/ Stacy Jordan Rodriguez

Stacy Jordan Rodriguez



21/21


CERTIFICATE OF SERVICE

I hereby certify that on September 11, 2015, I electronically filed the foregoing

document with the Clerk of Court for the United States District Court for the Northern District of

Texas using the electronic case filing system of the Court. Service on all attorneys of record who

are Filing Users will be automatically accomplished through Notice of Electronic Filing.

s/ Peter B. Haskel

PETER B. HASKEL


Documents

Dallas Emergency Motion for Protective Order